Don’t Leave Them Behind

Education for Homeless, Immigrant, and Limited-English-Proficient Children

School districts across the country have been developing increasingly strict and restrictive enrollment policies over the past decade. The fear among these districts is that, due to their high levels of academic excellence, they are attracting students who are enrolling with false information. Kelley Williams-Bolar in Akron, Ohio, made national news when she enrolled her children into the neighboring Copley-Fairlawn School District. Her home having been broken into, she and her children began staying temporarily with her father, who lived in Copley-Fairlawn’s district.1 However, she was charged with and convicted of felony records tampering because she was allowing the children to attend school in a district not considered her district of residence. She was sentenced to jail.2

Williams-Bolar’s case is an extreme example of the lengths to which some districts will go to enforce district residency policies and restrict enrollment to students living full-time within district boundary lines. In situations like Williams-Bolar’s, many parents, who are forced by circumstance to stay with relatives or who simply want to help their children by enrolling them in the best possible schools, end up running afoul of district residency policies. Moreover, for homeless, immigrant, and limited-English-proficient families, the impact of these restrictive residency policies can be such that children are prevented from accessing a public education entirely even if they reside within the district’s borders. Across the nation, school funding inequities have segregated many families with low income and families of color into underperforming schools, and aggressive district policies on residency enforcement have a disparate impact on those families.

The intent and result of restrictive residency policies can take different forms, such as requirements that potential students or parents present specific types of government-issued identification (e.g., driver’s licenses or state identification cards) or that families proffer particular types of proof that they reside in the district (e.g., a parent’s name on a lease or mortgage document). On their face the policies may appear to be nondiscriminatory and equally applied to all students. But in practice these policies can have a disparate negative impact on immigrant and limited-English-proficient youths whose parents may not have the required state identification documents due to their immigration status; on nonimmigrant students of color whose parents may lack documents as a result of poor-quality keeping of civil records in the post–Jim Crow South or high incarceration rates; and homeless youths whose parents may no longer have documents that they once had.

For homeless, immigrant, and limited-English-proficient families, the impact of these restrictive residency policies can be such that children are prevented from accessing a public education entirely even if they reside within the district’s borders.

Constitutional History

The right of equal access to education has been affirmed by the U.S. Supreme Court in a number of cases, starting with Brown v. Board of Education in 1954.3 In Brown the Court held that, even if schools segregated by race were of equal quality in facilities and teachers, segregation in and of itself was both unconstitutional and harmful to minority students. Subsequent cases further clarified and expanded that right.

In Lau v. Nichols the Supreme Court affirmed a May 25, 1970, memorandum of the U.S. Department of Education directing school districts to take steps to help limited-English-proficient students overcome language barriers and ensure that they were able to participate meaningfully in districts’ educational programs.4 In Lau a group of non-English-speaking Chinese students claimed that they were being discriminated against due to their inability to speak English. Some other non-English-speaking students in the school were receiving special help with English, while they were not. They argued that such treatment was a violation of Title VI of the Civil Rights Act of 1964 banning educational discrimination on the basis of national origin.

Finding that the lack of linguistically appropriate accommodations denied the students equal educational opportunities on the basis of their ethnicity, the Supreme Court ruled in favor of the students and thereby expanded the rights of limited-English-proficient students nationwide. Lau reflects the view that a person’s language is so closely intertwined with national origin that language-based discrimination is in effect a proxy for national-origin discrimination.

In Plyler v. Doe the Supreme Court formally recognized the value of providing a fundamental education to all children, even those who were in the United States without proper immigration documentation.5 Texas education laws had been revised to allow for state funds to be withheld from educating children who had not been “legally admitted” to the United States, and the education laws authorized local school districts to deny enrollment to such students.6 The Court’s decision emphasized the importance of access to education, regardless of an individual’s immigration status: “[E]ducation has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”7

The Supreme Court turned to the constitutionality of residency restrictions in Martinez v. Bynum in 1983.8Martinez focused on the question of whether the Texas Education Code could allow a school district to deny public school admission to a minor who lived with his sister in Texas, rather than his parents in Mexico, if his presence in the district was for the primary purpose of attending school there. A district may have residency restrictions in place to ensure that the only students enrolling in its schools were bona fide residents of the district and not residing in the district with the sole purpose of attending school there, the Court held. Martinez paved the way for districts to develop increasingly restrictive proof-of-residency requirements.

Federal Guidance

The U.S. Department of Education and the U.S. Department of Justice have issued two joint letters about school districts’ best practices on equal access and school enrollment policies.

Affirmative advocacy options are available for advocates to enforce the rights of homeless, immigrant, and limited-English-proficient students being prevented from enrolling in public schools.

may 6, 2011, “dear colleague” letter
The Justice Department and the Education Department in 2011 issued a joint letter to school districts on students being excluded from enrollment or participation in school due to their citizenship, immigration status, or national origin.9 The “Dear Colleague” letter cited Plyler v. Doe in encouraging districts to remember their obligation to educate all children: “As Plyler makes clear, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student’s entitlement to an elementary and secondary public education.”10

The “Dear Colleague” letter specified several instances of unacceptable discrimination. Although the Justice Department and the Education Department acknowledged a district’s right to ensure residency pursuant to Martinez v. Bynum, their letter specifically outlined the following practices as unacceptable by school districts:

Inquiring into students’ citizenship or immigration status or that of their parents or guardians;

Barring a student from enrolling in its schools based on a foreign birth certificate;

Using data on race or ethnicity to discriminate against students;

Denying a student enrollment based on a parent or guardian’s refusal to provide data on race or ethnicity; and

Denying a student enrollment based on a parent or guardian’s refusal to give a Social Security number.11

may 8, 2014, “dear colleague” letter
The Justice Department and Education Department’s joint “Dear Colleague” letter of May 8, 2014, replaces the 2011 letter.12 The 2014 letter reinforces the guidance of the prior letter and was written to respond to “student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their parents’ or guardians’ actual or perceived citizenship or immigration status.”13 The Education Department’s Office for Civil Rights had investigated 17 complaints alleging the denial of enrollment to eligible students; the complaints were against districts in a number of states.14

The practices prohibited by the 2011 letter are also prohibited by the 2014 letter. Moreover, the 2014 letter requires that school districts apply all requests for demographic information uniformly to their students, rather than applying the requests in a selective manner to specific groups of students. The 2014 letter recommends that districts review school enrollment documents to ensure that they do not have a chilling effect on students and that the enrollment of any group of students has not significantly dropped, signaling possible enrollment barriers.15

The 2014 letter is already being put into practice in ensuring school access for limited-English-proficient students.16 The Justice Department, the Education Department, and the Jefferson Parish Public School System in Louisiana recently entered a three-year voluntary agreement to resolve complaints against the school system. The agreement sets forth protections for students and parents such as a translation and interpretation policy and a ban on requiring any documentation of citizenship or immigration status for school enrollment.17

Advocacy Tools

Advocates have options, in both judicial and administrative context, to resolve their clients’ problems of school access or educational discrimination.18

civil rights complaints
Last year the Michigan Immigrant Rights Center challenged a Kentwood Public Schools policy that required parents to produce a valid, unexpired Michigan driver’s license or state identification to enroll their children in school.19 Under Michigan law, only those individuals who can demonstrate sufficient “legal presence” may obtain driver’s licenses or state identification cards.20 A number of other states have similar laws in place to prevent immigrants without sufficient immigration documentation from obtaining any type of state-issued identification.

A parent came to the Michigan Immigrant Rights Center after local elementary school staff in Kentwood prevented her U.S. citizen child from enrolling because the mother did not have a current driver’s license. On behalf of the child, the center filed a complaint with the U.S. Department of Education’s Office for Civil Rights; the complaint alleged that the enrollment policy violated the child’s rights under federal law because the policy discouraged enrollment and discriminated against children whose parents were unable to obtain a Michigan driver’s license or state identification due to immigration status.21

Following the Michigan Immigrant Rights Center’s complaint on behalf of the student, Kentwood Public Schools changed its enrollment policy and began allowing parents to use alternative forms of identification:

Proof of Residency—ONE source of documentation and ONE proof of I.D. are required. ONE PROOF FROM THE FOLLOWING LIST: current mortgage document, [u]tility [b]ill (gas, electric, phone, etc[.]), current property tax statement (summer), automobile insurance or registration, closing papers (within the past 30 days), bank statement, credit card statement, cable TV bill, accepted purchase agreement (signed by all parties with closing date indicated), current lease (apartment/home rental or landlord affidavit) AND IDENTIFICATION: photo ID, such as a driver’s license, State ID, employment ID, or passport. In lieu of residency requirements, the district may consider other documentation and one source of [i]dentification....22

Besides filing a complaint with the Office for Civil Rights, advocates may want to consider alternate complaint strategies. Complaints to the Office for Civil Rights can take years to be fully investigated even before getting to remedies. Such an investigation may take too long for students whose education depends on the outcome. Other options to consider are filing a lawsuit in either state or federal court and filing an administrative complaint with the Justice Department’s Educational Opportunities Section, the state department of education, or the state office of civil rights. Advocates should investigate thoroughly their particular jurisdictional options and the client’s desires and circumstances to determine which route to take in a case. Advocates should consider the timeline for filing and resolving a complaint, the resources and jurisdiction of the agency in question, the availability of filing a complaint anonymously if a client so desires, the track record of the agency in resolving complaints, and the relationship that an advocate may have with the agency.

When a civil rights complaint is filed in state or federal court, motions for preliminary injunction or for a temporary restraining order can be useful tools for students who need immediate access to school.

motions for injunctive relief
When a civil rights complaint is filed in state or federal court, motions for preliminary injunction or for a temporary restraining order can be useful tools for students who need immediate access to school. The standards for a preliminary injunction or a temporary restraining order vary with jurisdiction, and an advocate should determine what is required by each court. In federal court a motion for a temporary restraining order may be granted if the plaintiff establishes that the plaintiff is “likely to succeed on the merits; [the plaintiff is] likely to suffer irreparable injury if preliminary relief is denied; the balance of equities tips in the plaintiff’s favor; and an injunction would serve the public interest.”23 An advocate could request that a district be enjoined or restrained from prohibiting the student’s enrollment pending the outcome of the case. The specifics of this process go beyond my scope here, but injunctive relief is a strategy worth considering.

mckinney-vento homeless act
Parents who may be having trouble accessing housing are denied the opportunity to enroll their children in school—this is a less common but equally discriminatory trend in some suburban districts with increasing numbers of immigrant or limited-English-proficient families. Homelessness can be a problem for students with immigrant or limited-English-proficient parents: “Some parents may be in the country illegally, others may be here legally but live with someone who is not, and some may not have the paper work in order to meet the official designation of meeting legal residency standards.”24 Silvia’s story illustrates this problem.25

Silvia and Pablo were young immigrant parents with two elementary-school-aged children. After living in the United States for nine years, Pablo was caught in a raid on a factory employing undocumented workers. Pablo went through extended immigration proceedings and eventually was deported back to Guatemala, the family’s country of origin. Silvia’s children, 8 and 6, were born in the United States, and, since starting school, they had been living in a midsized Midwestern city.

After Pablo was deported, Silvia could no longer afford to pay rent. She could not speak English and could not find a job. Silvia’s friend lived in an apartment complex in the suburbs, where many Spanish-speaking families lived. The apartment complex was located in an affluent, academically high-performing school district. Silvia’s friend moved her three children together into one of the apartment’s bedrooms with her, and Silvia and her children began staying in the second bedroom.

Silvia’s children had always been successful in school, and Silvia wanted them to continue with their education. Soon after moving into her friend’s apartment, she went to the school district’s enrollment office and began filling out paperwork to enroll her children in the school. The enrollment official asked Silvia for proof that she was living in the district. Silvia explained that she was living with her friend and was not on the lease. As an undocumented immigrant, she did not have a driver’s license or any state identification.

The enrollment officer told Silvia that if her name was not listed on the lease, she would not be allowed to enroll her children in the district. Other families living in Silvia’s apartment complex had had a similar experience in trying to enroll their children in the school. Stories mirroring that of Silvia and her children are becoming increasingly common in suburban districts where immigrants, finding work and housing opportunities to be saturated in metropolitan areas, have been relocating in recent years. Because of such restrictive enrollment policies, eligible children are being deprived of their right to education.

The McKinney-Vento Act ensures that homeless students, regardless of immigration status or level of English proficiency, may access an education.

Silvia’s children were eligible for relief under the protections of the McKinney-Vento Homeless Education Assistance Improvements Act of 2001.26 Among other provisions, the McKinney-Vento Act requires that “[e]ach State educational agency shall ensure that each child of a homeless individual and each homeless youth has [sic] equal access to the same free, appropriate public education, including a public preschool education, as provided to other children and youths.”27 The Act has this as a defined category of homelessness: “children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement.”28 Silvia and her children shared a home with friends due to economic hardship and were not in a fixed, regular, adequate residence (they were sharing a bedroom in a cramped, overcrowded apartment unit), and thus they fell under McKinney-Vento’s definition of homeless.

School district employees may either, at best, be unaware of students’ rights as homeless individuals under the McKinney-Vento Act or, at worst, be pursuing what they perceive as a legal way to discriminate against particular groups and prevent them from enrolling into their school systems. In either case the McKinney-Vento Act ensures that homeless students, regardless of immigration status or level of English proficiency, may access an education. McKinney-Vento requires every local educational agency to “designate an appropriate staff person” to serve as liaison in enforcing the Act.29

A good starting point in fighting McKinney-Vento violations is to reach out to the designated district liaison. A conversation with the appropriate staff member can lead to immediate enrollment of immigrant or limited-English-proficient students who are also homeless under McKinney-Vento. Advocates should consider working with the district to educate enrollment center staff on McKinney-Vento to change the district’s enrollment system for similarly situated students and families.

If the problem cannot be resolved via negotiation with the district liaison, or if a broader advocacy strategy is sought, McKinney-Vento complaints can be filed with state departments of education. The specific procedures vary with the state but should be found at the state’s department of education website. In Michigan, for example, complaints may be made in writing to the Michigan Department of Education, which initiates an informal hearing and dispute resolution with the state homeless coordinator.30 That decision can be appealed to the state’s deputy superintendent and then to the U.S. secretary of education.31

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Affirmative advocacy options are available for advocates to enforce the rights of homeless, immigrant, and limited-English-proficient students being prevented from enrolling in public schools. Finding a willing client may be a challenge since many families with members who do not have proper documentation may be too fearful to come forward with a complaint against a district. However, the option to keep identifying information anonymous when possible can go far to alleviate such fear.

Last year Clearinghouse Review published a special issue calling on poverty law advocates to build our capacity to pursue racial justice. The special issue has an article specifically identifying immigrants’ rights as civil rights.32 One way in which advocates can meet this call to action is by battling against facially nondiscriminatory school enrollment policies that can have a disparate negative impact on the rights of immigrant and limited-English-proficient students and families. Education is a key component in the fight for civil rights, and advocates’ victories in ensuring that immigrant and limited-English-proficient youth can access education will benefit all students.33

18 While a full discussion of Legal Services Corporation (LSC) noncitizen eligibility rules is beyond the scope of this article, I should note that LSC-funded programs may represent U.S. citizen children in cases asserting their right to enroll in school. In general, recipients of LSC funds are not permitted to “provide legal assistance for or on behalf of an ineligible alien” (45 C.F.R. § 1626.3). LSC-funded programs may not advocate on behalf of undocumented immigrant parents. However, they may represent children who are either U.S. citizens or eligible aliens, provided the children are otherwise financially eligible. These children have their own legally cognizable right to enroll in school; indeed this is the child’s right, not the parents’ (see Legal Services Corporation, Advisory Opinion 2010-002, Legal Assistance to Ineligible Alien Parents with U.S. Citizen Children (Part 1626) (April 14, 2010)).